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Alejo Mabanag for appellant. G. E. Campbell for appellee. SYLLABUS 1.NEGLIGENCE; CRITERION FOR DETERMINING EXISTENCE OF NEGLIGENCE. — The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course about to be pursued. If so, the law imposes a duty on the actor to refrain from that course or to take precaution against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this prevision, is the constitutive fact in negligence. 2.ID.; CONTRIBUTORY NEGLIGENCE; SUCCESSIVE NEGLIGENT ACTS. — Where both parties are guilty of negligence, but the negligent act of one succeeds that of the other by an appreciable interval of time, the one who has the last reasonable opportunity to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. 3.ID.; ID.; CASE AT BAR. — The plaintiff was riding a pony on a bridge. Seeing an automobile ahead he improperly pulled his horse over to the railing on the right. The driver of the automobile, however, guided his car toward the plaintiff without diminution of speed until he was only a few feet away. He then turned to the right but passed so closely to the horse that the latter being frightened, jumped around and was killed by the passing car. Held: That although the plaintiff was guilty of negligence in being on the wrong side of the bridge, the defendant was nevertheless civilly liable for the legal damages resulting from the collision, as he had a fair opportunity to avoid the accident after he realized the situation created by the negligence of the plaintiff and failed to avail himself of that opportunity; while the plaintiff could by no means then place himself in a position of greater safety.
STREET, J p: In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,100, as damages alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed. The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road. The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge instead of going to
the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding against its consequences. But in view of the known nature of horses. The horse fell and its rider was thrown off with some violence. then he is guilty of negligence. omniscient of the future. Seeing that the pony was apparently quiet. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. and it was his duty either to bring his car to an immediate stop or. deceived into doing this by the fact that the horse had not yet exhibited fright. From the evidence adduced in the case we believe that when the accident occurred the free space where the pony stood between the automobile and the railing of the bridge was probably less than one and one half meters.the left. In so doing the defendant assumed that the horseman would move to the other side. As a result of its injuries the horse died. we think. They are not. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. In the nature of things this change of situation occurred while the automobile was yet some distance away. The control of the situation had then passed entirely to the defendant. there being then no possibility of the horse getting across to the other side. Instead of doing this. The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done. The pony had not as yet exhibited fright. Stated in these terms. Abstract speculation cannot here be of much value but his much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or known to them. but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done. The law considers what would be reckless. the defendant guided it toward his left. Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. He was. but in so doing the automobile passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward the railing. placed in the position of the defendant. When the defendant exposed the horse and rider to this danger he was. and are not supposed to be. seeing that there were no other persons on the bridge. is always necessary before negligence can be held to exist. The bridge is shown to have a length of about 75 meters and a width of 4. in our opinion. negligent in the eye of the law. Reasonable foresight of harm. he had the right to assume that the horse and rider would pass over to the proper side. and would therefore have foreseen harm to the horse and rider as a reasonable consequence of that 2 . and he must in a moment have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it was then standing. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. if the animal in question was unacquainted with automobiles. followed by the ignoring of the suggestion born of this prevision. instead of veering to the right while yet some distance away or slowing down. in the case under consideration. The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. and the rider had made no sign for the automobile to stop. Could a prudent man. would. and from this moment it was not longer within the power of the plaintiff to escape being run down by going to a place of greater safety. When he had gotten quite near. or negligent in the man of ordinary intelligence and prudence and determines liability by that. A prudent man. He says that the reason he did this was that he thought he did not have sufficient time to get over to the other side. there was an appreciable risk that. the defendant ran straight on until he was almost upon the horse. that being the proper side of the road for the machine. the defendant. in our opinion. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days. The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not. As the automobile approached. have recognized that the course which he was pursuing was fraught with risk. As the defendant started across the bridge. he might get excited and jump under the conditions which here confronted him. foresee harm as a result of the course actually pursued? If so. it was struck on the hock of the left hind leg by the flange of the car and the limb was broken. and we are of the opinion that he is so liable. In so doing. continued to approach directly toward the horse without diminution of speed.08 meters. it was the duty of the actor to take precautions to guard against that harm. blameworthy.
and in such case the problem always is to discover which agent is immediately and directly responsible. and the plaintiff's leg was caught and broken. 564. At a certain spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed. 359) should perhaps be mentioned in this connection... The rails were conveyed upon cars which were hauled along a narrow track. the loss or damage occasioned to articles of his apparel. the defendant was also negligent. J. Separate Opinions MALCOLM. for he was guilty of antecedent negligence in planting himself on the wrong side of the road. A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer. The defendant company had there employed the plaintiff.. medical expenses of the plaintiff. without reference to the prior negligence of the other party. The decision in the case of Rakes vs. In this connection it appears that soon after the accident in question occurred. It is enough to say that the negligence of the defendant was in this case the immediate and determining cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case. It will be noted that the negligent acts of the two parties were not contemporaneous. since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves). C. The court found that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff was. Carson. 31 Phil. Atlantic.) From what has been said it results that the judgment of the lower court must be reversed. It appeared in evidence that the accident was due to the effects of a typhoon which had dislodged one of the supports of the track. guilty of contributory negligence in walking at the side of the car instead of being in front or behind.. with costs of both instances.. The sum here awarded is estimated to include the value of the horse. the rails slid off. Araullo. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences. It goes without saying that the plaintiff himself was not free from fault. a laborer. vs. But as we have already stated. and judgment is here rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200). Rep. Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm. it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. and Fisher. reserves his vote. concur. The liability of the company arose from its responsibility for the dangerous condition of its track. Rep. At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed.J. Johnson. and lawful interest on the whole to the date of this recovery. to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. As will be seen the defendant's negligence in that case consisted in an omission only. The car was in consequence upset. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recover. Arellano. nevertheless the amount of the damages should be reduced on account of the contributory negligence of the plaintiff. Avanceña. Banzuela and Banzuela. where the defendant was actually present and operating the automobile which caused the damage. The other damages claimed by the plaintiff are remote or otherwise of such characters as not to be recoverable. concurring: 3 . So ordered.S. In a case like the one now before us. Torres. Conceding that the acquittal of the defendant at a trial upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his civil liability arising from negligence — a point upon which it is unnecessary to express an opinion — the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no such effect.(7 Phil.course.. JJ. (See U. to the effect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. Gulf and Pacific Co. J. we do not feel constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage according to the degree of their relative fault. at the moment of the accident.
consequently. Again. and that at that moment the plaintiff had no opportunity to avoid the accident. his negligence in reaching that position becomes the condition and not the proximate cause of the injury and will not preclude a recovery. (Note especially Aiken vs. This rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. 102 Atl. Metcalf . 330. But Justice Street finds as a fact that the negligent act of the defendant succeeded that of the plaintiff by an appreciable interval of time. if a traveller when he reaches the point of collision is in a situation to extricate himself and avoid injury. his negligence at that point will prevent a recovery. I do so because of my understanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile accidents. In other words.) 4 .After mature deliberation. I have finally decided to concur with the judgment in this case. the "last clear chance" rule is applicable.. when a traveller has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury.
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